Counter-Complaint Lodged By Injured Accused Should Be Dealt Together With That Of Injured Complainant: Madras High Court

Observing serious irregularities in the witness statements and police investigation, Madras High Court has acquitted five persons, out of which the first accused was convicted for the offence of culpable homicide not amounting to murder under Section 304 of IPC.

The bench of Justice A.D. Jagadish Chandira noted that there are contradictions in the versions of prosecution witnesses with regards to the number of accused and the specific weapons used by the accused while attacking the deceased and other persons.

On top of that, the Police chose to investigate both cases separately though an FIR was registered against the deceased and a few prosecution witnesses by the accused in the same occurrence.

The court also came to the conclusion that the FIR Numbers in the cases of the accused and the prosecution was altered to render the prosecution undue advantage, projecting it as an FIR registered prior to that of accused persons' FIR. The FIR  registered based on the complaint of accused was also suppressed by the investigating officers and the prosecution. Additionally, the court also took note of the delay of over six hours in forwarding the FIR to the Magistrate even when the distance between the police station and the Magistrate's residence was under thirty minutes.

The High Court relied on a recent judgment of the Supreme Court in Arvind Kumar @ Nemichand & others vs. State of Rajasthan, LL (LiveLaw) 2021 SC 286, which held that a fair investigation would become a 'colourable' one when there is suppression of facts. Therefore, the court held that:

"....in the light of the decision cited supra, this court has to arrive at an irresistible conclusion that the genesis of the occurrence has been suppressed by the prosecution and the prosecution witnesses have tried to give a different colour to the occurrence without explaining the injuries sustained by the accused parties in the same occurrence and the resultant criminal proceedings initiated by them and thereby, the prosecution has failed to prove its case beyond reasonable doubts and it is surrounded by cloud of doubts and the benefit of such doubt has to be afforded to the appellants/accused..."

The court concluded that the Trial Court has not appreciated the evidence available on record properly and the conviction of the appellants were based on erroneous grounds. Therefore, the court acquitted all the five accused who were charged for offences under under Sections 147, 148, 341, 294B, 321, 307 and 302 of IPC. The trial court had convicted Accused No.1 (A1) for for offences under Sections 304(i)IPC and the other four accused under Sections 323 and 324 IPC.

While allowing the criminal appeal under Section 374(2) of CrPC, the court observed that there was a deliberate defective investigation and conscious suppression of facts in the current case similar to Arvind Kumar.

According to Tamil Nadu Police Standing Order No.588A and the Supreme Court Orders, the investigation of both cases, i.e., the  prosecution case and the case of the accused about the injuries they sustained in the same occurrence, must be carried out simultaneously by the same investigating officer and both reports submitted thereafter. However, the court observed as below regarding the conduct of the police officials:

"However, in the present case, the complaint lodged by the accused party was separately dealt with, without following the above guidelines and for the reasons best known to them, the police officials, in charge of the investigation had suppressed about such a complaint lodged by the accused parties and the prosecution witnesses including such police officials had pleaded ignorance of the same which speaks volumes about the investigation done in a biased manner."

The court has categorically made a finding that it was the same doctor who was PW 12 that examined both the accused who had sustained the injuries as well as the deceased victim and prosecution witnesses at 3 am and 3 am respectively on the date of occurence. In spite of that, the said fact was suppressed by the investigation, the court notes. After placing reliance on Babu Ram and Others v. State of Punjab,  (2008) 3 SCC 709 & Kumar v. State Represented by Inspector of Police in the given factual background,  (2018) 7 SCC 356, the court notes as below:

"...the same has been suppressed by the investigation and thereby it is proved that the accused party had also sustained injuries in the occurrence, however, it has been cleverly left to be dealt by the prosecution and the injured/victims in the prosecution witnesses also pleaded ignorance of the same. PW14 Sub Inspector of Police, who had the knowledge about the complaint given by the accused party had also remained silent and pleaded ignorance of the same. Further, this court called for the original F.I.R.s in both cases and it is clear that the Crime Numbers have been corrected and manipulated to project that the F.I.R. in the present case as prior."

The case arises from a scuffle between the accused parties and the prosecution witnesses as well as the deceased person. The quarrel between the parties is attributed to one of the girls from the family of the accused eloping with another person with the help of the deceased person. The altercation and scuffle had taken place taken place on 25.3.2013 at about 11.00 pm. The complaint was given by one of the prosecution witness on 26.3.2013 at 5.00 am, but, it had reached the court only at 11.30 pm on that day with a delay of more than 6 hours. 

With reference to the delay in forwarding the FIR to the Magistrate without satisfactory reasons, the court relied on the SC judgment in Rajeevan and another vs. State of Kerala (2003) to establish that it can adversely affect the prosecution case and raise suspicions about the circumstances surrounding the case.

"...There is also contradiction in the version of prosecution witnesses with regard to the weapons alleged to have been used by the accused for attacking them. They had stated before the Doctor PW12 that they had been assaulted by 20 known persons armed with Soda Bottles, Beer Bottles, knife and wooden logs whereas, the M.Os. produced are only Bamboo Sticks and only five accused are implicated in the case", the court observed about the contradiction in prosecution witnesses' versions.

The appellants primarily argued that the genesis of the occurrence arose from the side of the injured prosecution witnesses. Without explaining the injuries sustained by the accused parties and the criminal prosecution initiated by them, the prosecution suppressed such cause of action and the fact that it is a case and counter case. The defence also argued that there has been manipulation of the Crime Numbers in both cases to portray that the complaint  lodged by the de facto complainant in the present case is earlier than the complaint lodged by the accused. 

Case Title: V. Subramanian & Ors. v. State

Case No: Criminal Appeal No.4 of 2019

Citation: 2022 LiveLaw (Mad) 45

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